Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (10 March 1987)

HIGH COURT OF AUSTRALIA

AUSTRALIAN SAFEWAY STORES PTY. LTD. v. ZALUZNA (1987) 162 CLR 479

F.C. 87/008

Negligence

High Court of Australia

Mason(1), Wilson(1), Brennan(2), Deane(1) and Dawson(1) JJ.

CATCHWORDS

Negligence - Dangerous premises - Injury to entrant - Liability of occupier - Duty of care - Invitee - Special duties owed by occupier to different classes of entrant - General duty of care - Whether general duty of care coexists with special duty - Customer injured by slipping on damp floor - Whether general duty of care.

HEARING

1986, November 26; 1987, March 10. 10:3:1987

APPEAL from the Supreme Court of Victoria.

DECISION

MASON, WILSON, DEANE AND DAWSON JJ.: On Saturday 20 January 1979 towards midday the respondent entered what has been described as the "foyer area" of the appellant's supermarket at Mount Waverley in Victoria, intending to buy some cheese. It was a rainy day and in consequence the vinyl-tiled floor of the foyer area had become wet or moist. Unfortunately, before entering the area of the supermarket where the merchandise was displayed, the respondent slipped and fell heavily on the floor. She sustained personal injury. She sued the appellant in the Supreme Court of Victoria for damages for negligence, alleging both a breach of the general duty of care and a breach of the duty owed by an occupier to an invitee. The action was tried by a judge sitting alone.

2. The learned trial judge ruled that the case was not one in which it was appropriate to look for a duty of care cast in terms of the principles enunciated by Lord Atkin in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 580. In coming to that conclusion, his Honour relied primarily on the decision of the House of Lords in London Graving Dock Co. Ltd. v. Horton (1951) AC 737. He therefore directed himself in accordance with the classic exposition of the invitor's duty to his invitee as laid down by Willes J. in Indermaur v. Dames (1866) LR 1 CP 274, at p 288, namely, that it was the appellant's obligation to take reasonable care to prevent damage from unusual danger of which it knew or ought to have known.

3. The trial judge, while recognizing that the moisture on the floor did constitute some kind of hazard to customers, held that it was no more than customers shopping on a wet morning would ordinarily expect. It was not an unusual danger. However, his Honour acknowledged that there might be room for different views about such a conclusion and he therefore proceeded to consider the case on the assumption that there was an unusual danger. His Honour found that the mopping-up procedures adopted by the appellant in order to cope with the wet conditions had not been shown to fall short of what was reasonable. He also considered a number of other possible safeguards which it was alleged that the appellant might have undertaken. In the result his Honour found that the appellant was not in breach of the duty of care that would arise on the assumption he had made. He dismissed the respondent's action.

4. The respondent appealed to the Full Court (Starke, Murphy and Beach JJ.) and by the notice of appeal launched a comprehensive attack on the findings of the trial judge. When the appeal came on for hearing, leave was given to add a further ground of appeal as follows:



"That the learned Trial Judge was wrong in law in

finding that the defendant did not owe the

plaintiff a general duty of care."

Full Court dealt. Indeed, we were informed from the Bar table that by arrangement no argument was addressed to the Full Court on the other grounds of appeal. They were not abandoned. The Full Court allowed the appeal. Starke J., with whom the other members of the Court agreed, referred to two recent decisions of this Court in Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614 and Papantonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 (decisions which had not been published at the time of the trial) and found them determinative of the success of the appeal. His Honour described the error of the trial judge as:

"that whilst he considered the application of

Indermaur v. Dames, he did not consider whether or

not there were circumstances which justified the

application of Donoghue v. Stevenson, and in

failing to take that matter into consideration, ...

he committed a reversible error".

Murphy J. added a comment to the like effect. The Court ordered a new trial.

5. Counsel for the appellant advances three propositions in support of the appeal. The first is that the case was one in which the only relevant relationship of proximity was that of occupier and invitee and that consequently the only duty of care owed by the appellant to the respondent was the special duty described in Indermaur v. Dames. The second proposition is that the trial judge did consider whether there were circumstances which gave rise to the existence of a general duty of care. The third proposition is that if the appellant did owe a general duty of care there was no difference, in the circumstances of the case, between the content of that duty and the content of the special duty considered by the trial judge, with the result that his Honour's findings necessarily constitute a finding that the appellant was not in breach of any general common law duty of care.

6. We do not think that any of these propositions should prevail. The first proposition must yield, as the Full Court recognized, to the recent decisions in Hackshaw and Papantonakis. We will return to this aspect of the case. The second proposition is intimately related to the first. As will be seen, it must fall with it for the reason that such consideration as the trial judge gave to the allegation based on Donoghue v. Stevenson was coloured by his Honour's reliance on Horton, a decision which cannot now be said to be of any authority in this country. It may well be that detailed analysis would disclose that there is much to be said in favour of the third proposition. The difficulty with it, however, is that the findings of the trial judge were put in issue by the notice of appeal to the Full Court and the issue was not disposed of. The view in support of the order for a new trial appears from the judgment of Murphy J. His Honour recognized that the trial judge may not have reached any different conclusion on the application of the Donoghue v. Stevenson principle; nevertheless he continued:

"However, it does appear likely to me that his

Honour's overall approach to the negligence issues

may well have been influenced and possibly clouded

by his initial conclusion that the principles

expressed in Horton's Case represented the law in

the State of Victoria. The plaintiff was in my

opinion entitled to have the facts and the evidence

of the facts, considered against the backdrop of

the proper legal principles to be applied ...".

We agree with his Honour's view and with the conclusion of the Full Court that, once it was determined that the appellant owed a general duty of care to the respondent, it was appropriate to order a new trial.

7. We return, then, to the principal issue. The recent review of relevant authority undertaken by Deane J. in Hackshaw, at pp.642-663, and by Mason J. in Papantonakis, at pp.14-20, prepares the way for a more definitive statement on this aspect of the law of negligence in Australia. In Papantonakis, at p.32, Deane J. referred to the reasons which he gave in Hackshaw and continued:

"... it should now be again accepted in this

country that the so-called 'special duty' which an

occupier of land owes to an invitee is, on

analysis, properly to be seen as the ordinary

common law duty to take reasonable care: 'The duty

is a duty to take reasonable care. The standard is

the standard of the reasonable man', per

Fullagar J., Commissioner for Railways (N.S.W.) v.

Anderson [1961] HCA 38; (1961) 105 C.L.R. 42, at p.56. In that

regard, the dissenting judgments of Lord MacDermott

and Lord Reid in London Graving Dock Co. Ltd. v.

Horton (1951) A.C. 737 accord better with

subsequent developments in the law of negligence

and are to be preferred, at least in this country,

to the judgments of the majority of their Lordships

which were largely rendered inoperative in England

by subsequent statutory provision: see Occupiers'

Liability Act 1957 (U.K.), s.2(4)(a)."

Mason J. in Papantonakis, at p.20, said:

"In relation at least to a person in the position

of an invitee, Anderson and Voli must be taken as

settling that the duty of an occupier, even as it

is expressed in the Indermaur v. Dames formulation,

is no more and no less than the ordinary duty of

reasonable care."

His Honour reserved for consideration at some later time the question whether the duty of the occupier also amounts to a duty to ensure that reasonable care is taken and then added that he did not regard the notion of concurrent duties as inconsistent with the duty of an occupier to an invitee being itself a duty to exercise reasonable care. The notion of concurrent duties to which his Honour referred was that which had been explained in a number of previous cases in this Court (see, in particular, Public Transport Commission (N.S.W.) v. Perry [1977] HCA 32; (1977) 137 CLR 107, at pp 130-132, 138-139).

8. Wilson J. in Papantonakis, at p.23, found it impossible, in the circumstances of that case, to distinguish between the duty of care resting in ordinary negligence and the duty of care resting in the occupier. His Honour continued:

"I would expect that this will always be the case

where the particular facts do not import any

relevant relationship other than that of occupier

to entrant. This is because the common law, in

enunciating the duty of reasonable care that is

owed by an occupier to different classes of entrant

to his property is particularizing one aspect of

the field of the general law of negligence. It

seeks to express what the general duty of care will

require of an occupier in particular circumstances:

Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960)

104 CLR 274, at p 317; Commissioner for Railways

(N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42, at

p 56."

These observations of Wilson J., together with the passage that follows in his Honour's judgment, lend support to the notion of concurrent duties, as also does the joint judgment of Brennan and Dawson JJ. in the same case. At pp.27-28, their Honours say:

"An occupier of land is under a general duty of

care to a person entering on the land, whether as

invitee, licensee or trespasser, independent of any

special duty, where there are circumstances giving

rise to the general duty. That is now the settled

law of this country: see Hackshaw v. Shaw [1984] HCA 84; (1984)

155 CLR 614. It is also settled that any

special duty owed by an occupier does not restrict

the scope and burden of the general duty: see

Public Transport Commission (N.S.W.) v. Perry

[1977] HCA 32; (1977) 137 CLR 107, at p 131, per Gibbs J.;

Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614, at

pp 650-651, per Deane J. In Hackshaw v. Shaw the

majority of the Court did not go as far as Deane J.

who held that 'the so-called "special duties" owed

by an occupier to a person lawfully upon his land

are instances of the duty of care arising under

that general law in the circumstances of the

relevant category of case' [1984] HCA 84; ((1984) 155 C.L.R. 614,

at p.657).

Nevertheless, it will usually be a barren

exercise to consider whether the special and

general duties are distinct but co-existing or

whether the special duty is subsumed under the

general duty. We would not resolve this question

until it is necessary to decide whether the special

duty may, in some circumstances, impose a higher or

more exacting burden than the general duty, or

whether the special duty can arise in circumstances

where the general duty does not. It is clear that

the general duty does not restrict the scope and

burden of the special duty and, until it is

necessary to decide and it is decided that the

limits of the special duty are within the limits of

the general duty, we would not depart from the

theory of co-existing duties. The rules relating

to the duties owed to invitees and licensees are

concerned with laying down the standard of care

appropriate to two special classes of case (per

Fullagar J. in Commissioner for Railways (N.S.W.)

v. Cardy [1960] HCA 45; (1960) 104 CLR 274, at p 295) and they

may be instructive in cases where the tribunal of

fact can find no relevant relationship between the

defendant and the plaintiff save that of occupier

and person entering."

It may be remarked that although, as Brennan and Dawson JJ. observe in this passage, the majority of the Court in Hackshaw did not go as far as Deane J. in identifying the formulation of special duties owed by an occupier as instances of the general duty of care under the law of negligence, it would appear from the passages that we have quoted that a majority in Papantonakis (Mason, Wilson and Deane JJ.) do go that far.

9. These judgments raise important issues. Does a theory of concurrent general and special duties, giving rise as it does to complications that raise "some intricate and possibly confusing arguments" (the Judicial Committee in Southern Portland Cement Ltd. v. Cooper [1973] HCA 54; (1973) 129 CLR 295, at p 309; (1974) AC 623, at p 645) serve any useful purpose as the law of negligence is now understood? Is there anything to be gained by striving to perpetuate a distinction between the static condition of the land and dynamic situations affecting the land as a basis for deciding whether the special duty is more appropriate to the circumstances than the general duty? The present case illustrates the neat issue that such a question can raise: on the one hand, the appellant argues that because the condition of the floor was caused by wet weather it was unrelated to any activity of the appellant and therefore the special duty supplied the relevant test; on the other hand, it was the activity of conducting a commercial operation on the premises that provided the context for the accident and what could be more dynamic than the constant movement of rain-soaked shoppers over the floor of a supermarket on a Saturday morning? If it was always the case that the formulations of an occupier's duty in specific terms contributed to the easy ascertainment of the law there would be a case for their retention, as Wilson J. acknowledged in Papantonakis (at p.23), but the pursuit of certainty in this way loses its attraction if its attainment depends on the resolution of difficult questions based on artificial distinctions. It seems to us that the utility of the theory of concurrent duties could be accepted only if a situation could arise in which it was possible to establish a cause of action in reliance upon Indermaur v. Dames which could not be pursued by reference to the general duty of care postulated in Donoghue v. Stevenson. And yet case after case affirms, as the reviews to which we have referred demonstrate, that the special duties do not travel beyond the general law of negligence. They are no more than an expression of the general law in terms appropriate to the particular situation it was designed to address.

10. It must also be remembered that the duty of an occupier to an invitee was articulated by Willes J. in Indermaur v. Dames in 1866. The "plain tenor" of this pronouncement, to adopt the phrase used by Fleming in his text, The Law of Torts (1983) 6th ed., at p.430, is that an invitor's obligation with respect to dangers on his premises should be measured by the flexible standard of reasonable care, as part of the general law of negligence. Unfortunately it has been treated more as a statutory definition of exclusive application to the occupier of dangerous premises in their relationship to invitees. Yet in Heaven v. Pender (1883) 11 QBD 503, the Court of Appeal was concerned with formulating a duty of care in circumstances where unsound staging had been erected on premises to which there had been an invitation to the plaintiffs to enter, and the case really depended on the duty of the owner of the premises to persons so invited. The principle enunciated in that case, although not expressed in terms of the statement of Willes J., was taken up by Lord Atkin in formulating the general duty in Donoghue v. Stevenson. There remains neither warrant nor reason for continuing to search for fine distinctions between the so-called special duty enunciated by Willes J. and the general duty established by Donoghue v. Stevenson. The same is true of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers.

11. So long as these alternative formulae are retained, courts and others concerned with the application and administration of the law are committed to pursuing the "barren exercise" to which Brennan and Dawson JJ. referred. We are unable to see sufficient justification for their continued recognition. It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises. We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 68 ALR 161 and Cook v. Cook [1986] HCA 73; (1986) 61 ALJR 25; 68 ALR 353, to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw, at pp.662-663:

"... it is not necessary, in an action in

negligence against an occupier, to go through the

procedure of considering whether either one or

other or both of a special duty qua occupier and an

ordinary duty of care was owed. All that is

necessary is to determine whether, in all the

relevant circumstances including the fact of the

defendant's occupation of premises and the manner

of the plaintiff's entry upon them, the defendant

owed a duty of care under the ordinary principles

of negligence to the plaintiff. A prerequisite of

any such duty is that there be the necessary degree

of proximity of relationship. The touchstone of

its existence is that there be reasonable

foreseeability of a real risk of injury to the

visitor or to the class of person of which the

visitor is a member. The measure of the discharge

of the duty is what a reasonable man would, in the

circumstances, do by way of response to the

foreseeable risk."

12. In the circumstances of the present case, the fact that

the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. There must be a new trial to determine whether the appellant was in breach of that duty.

13. The appeal should be dismissed.

BRENNAN J.: The 20th January 1979 was a rainy day at Mount Waverley, a suburb of Melbourne. That day Mrs Zaluzna, the respondent, went into the appellant's supermarket at Mount Waverley to buy cheese. She was walking across the foyer of the supermarket when she slipped and fell because, as Tadgell J. found, the vinyl tiles on the floor of the supermarket were covered with a moist film. He said:

" I am not talking about a situation where shoppers

are sloshing about in a considerable amount of

water. I am speaking of the kind of dampness or

moisture which one commonly finds and, as I would

think expects to find, when large numbers of

people with wet feet and clothes and umbrellas

and shopping buggies, come indoors and walk

around an area which is covered with some

impervious flooring. If that was the extent of

the moisture, and in my opinion the evidence does

not really indicate that it was greater, then

assuming its source was as I have supposed, I

should not be prepared to find that it

constituted an unusual danger to the plaintiff."

That day an employee had been directed to mop up excess water carried in by customers, but his Honour was unable to find whether or not the moisture on the part of the floor on which Mrs Zaluzna slipped had been mopped over. On the hypothesis that the moisture on the floor was an unusual danger - an hypothesis which his Honour's earlier finding had rejected - he made further findings. First, that the appellant knew of the moisture but, secondly, that no failure to take reasonable care to prevent damage from the moisture had been established against the appellant. Accordingly, he dismissed Mrs Zaluzna's action for damages for negligence. The duty of care which his Honour held the appellant to owe to Mrs Zaluzna was the duty of care owed by an invitor to an invitee. The classical statement of that duty is to be found in the judgment of Willes J. in Indermaur v. Dames (1866) LR 1 CP 274, at p 288:

" And, with respect to such a visitor at least,

we consider it settled law, that he, using

reasonable care on his part for his own safety,

is entitled to expect that the occupier shall on

his part use reasonable care to prevent damage

from unusual danger, which he knows or ought to

know; and that, where there is evidence of

neglect, the question whether such reasonable

care has been taken, by notice, lighting,

guarding, or otherwise, and whether there was

contributory negligence in the sufferer, must be

determined by a jury as matter of fact."

2. Mrs Zaluzna appealed to the Full Court. Before the

appeal was heard, this Court delivered judgment in Papantonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7. In that case, Dawson J. and I said (at pp 27-28):

" An occupier of land is under a general duty of

care to a person entering on the land, whether as

invitee, licensee or trespasser, independent of any

special duty, where there are circumstances giving

rise to the general duty. That is now the settled

law of this country".

In supposed reliance on the published reasons in that case, the respondent added a seventh ground to her notice of appeal reading as follows:

" That the learned Trial Judge was wrong in law in

finding that the defendant did not owe the

plaintiff a general duty of care."

On that ground, the Full Court allowed the appeal and ordered a new trial. Starke J. held that the learned trial judge was in error in failing to consider "whether or not there were circumstances which justified the application of Donoghue v. Stevenson, and in failing to take that matter into consideration". Murphy J. held that the learned trial judge was in error "in considering that in a case of the type with which we have been concerned here the general duty of care could not arise". Beach J. agreed with the reasons of Starke and Murphy JJ. Their Honours did not find it necessary to consider the other grounds of appeal which challenged, inter alia, his Honour's finding that there had been no failure to take reasonable care to prevent damage from the moisture on the floor.

3. The seventh ground of appeal raises two questions for consideration. The first is whether there was evidence establishing or tending to establish circumstances giving rise to a general duty of care in addition to any special duty imposed on the appellant as occupier of the supermarket; the second question is whether the duty owed by an occupier of premises to an invitee in respect of the condition of the premises should be stated in the terms of Lord Atkin's speech in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562 rather than in the terms of the judgment of Willes J. in Indermaur v. Dames.

4. It is convenient to speak of a general duty and a special duty of care as shorthand references to the respective duties of care which were discussed by Lord Atkin and by Willes J. in those cases. General duties of care can arise from a variety of relationships between the person on whom the duty is imposed and the person to whom it is owed, but the special duty of an invitor can arise from but one class of relationship - the relationship between an occupier of premises and his invitee. The standard of care expected of a person on whom a general duty of care is imposed is usually stated in the terms used by Alderson B. in Blyth v. The Birmingham Waterworks Company [1856] EngR 223; (1856) 11 Ex 781, at p 784 (156 ER 1047, at p 1049):

" Negligence is the omission to do something which a

reasonable man, guided upon those considerations

which ordinarily regulate the conduct of human

affairs, would do, or doing something which a

prudent and reasonable man would not do."

The special duty of care owed by an occupier to an invitee is stated more particularly: it is to use reasonable care to prevent damage from a specified class of hazard, namely, an unusual danger of which the occupier knew or ought to have known. A special duty of care to a person entering premises under contract or as of right or as a licensee or as a trespasser is also owed by an occupier of the premises, the formulation of the duty differing according to the class of entrant.

5. The coexistence of a general duty of care with a special duty has been contested in cases where an occupier of premises was sued by a trespasser. The special duty owed by an occupier to a trespasser was, at least until the middle of this century, extremely limited - indeed, it can hardly be described as a duty of care at all: see the authorities cited by the Privy Council in Commissioner for Railways v. Quinlan (1964) AC 1054, at pp 1072-1075. The law as it had been laid down became ill-suited to a modern Australian community in which a greater relative importance had come to be given to personal safety as against freedom in the use and control of property: see Munnings v. Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1, per Windeyer J. at p 24. To give greater protection to the personal safety of trespassers, it was desirable to develop the law judicially in those jurisdictions where the legislature had not intervened. In this Court, there was little hesitancy in accepting that "circumstances over and above the character of the visitor as a trespasser may give rise to a general duty of care, with the result that an occupier is liable to a trespasser for negligence" (per Fullagar J. in Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274, at p 296), and that view has now prevailed: Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614. The Privy Council, however, was hesitant to accept the liberating solution of a dual relationship between an occupier of premises and a person who enters them as a trespasser: see Quinlan, at pp.1080-1081. There Viscount Radcliffe, commenting on the view expressed by Kitto J. in Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619, at pp 642-643, that a trespasser may also be the occupier's neighbour in Lord Atkin's sense of that term, said (at p.1081):

" ... if the relation of occupier and trespasser is

to be displaced by 'some other relation,' as may

happen, the grounds upon which that displacement

can be held to occur must admit of reasonably

precise definition, otherwise the task of charging

juries as to what the law requires or allows will

become virtually incapable of formulation."

In Southern Portland Cement Ltd. v. Cooper [1973] UKPCHCA 1; (1973) 129 CLR 295, at pp 309-310; (1974) AC 623, at p 645, Lord Reid said:

" Australian courts have tended to proceed on

somewhat different lines, perhaps in order to avoid

restrictions flowing from the decisions in Addie's

((1929) A.C.358) and Quinlan's Cases. This has led

to some intricate and possibly confusing arguments

as to whether, in a given state of facts, there are

two duties, existing side by side, falling upon an

occupier towards trespassers or potential

trespassers. These complications become

unnecessary if it is right, as their Lordships

think it is, to state the occupier's duty towards

trespassers in wider terms than appear in Addie's

Case, or in some passages in Quinlan's Case. Once

it is accepted that the nature of this duty cannot

be determined without reference to such all-

embracing considerations as their Lordships have

mentioned, the need for the imposition of two

separate parallel duties disappears."

6. The English development of the law widened the scope of

the special duty, thus reducing the need to invoke a coexistent general duty: see Herrington v. British Railways Board [1972] UKHL 1; (1972) AC 877. A reluctance to impose on an occupier a general duty of care to a trespasser can be accounted for by the view that "it would be unfair to allow (the trespasser) by his wrong-doing to interfere seriously with the occupier's freedom of action in making proper use of the premises": Commissioner for Railways v. McDermott (1967) 1 AC 169, at p 190. However, that consideration was met in this Court by treating the fact that the plaintiff is a trespasser as relevant to the existence and content of the general duty: see per Fullagar J. in Cardy, at p.299; Munnings v. Hydro-Electric Commission, at pp 11,28. In Hackshaw v. Shaw, when the fetter on the invocation of coexistent duties forged by Quinlan and Southern Portland Cement was loosened if not struck, Gibbs C.J. observed (at p.627):

" It seems to me of small importance to deny

that a general duty of care may coexist with the

special duty which an occupier owes to a trespasser

if it is conceded that the relationship of occupier

and trespasser may be replaced by another

relationship. At any rate it is settled law in

this country that the special duty may be replaced

by the general duty if the relationship between the

parties is not simply that of occupier and

trespasser and there are circumstances which give

rise to a duty of care."

7. That being the settled law with respect to trespassers,

a fortiori it was the settled law with respect to persons entering lawfully. That had already been decided in Public Transport Commission (N.S.W.) v. Perry [1977] HCA 32; (1977) 137 CLR 107, where Gibbs J. said (at p 132):

" It may be taken as settled that in appropriate

circumstances a person who has lawfully come on to

premises occupied by the defendant can recover

damages for injuries sustained by reason of the

negligence of the defendant, i.e., for breach of

the duty defined in Donoghue v. Stevenson. In

other words the occupier may owe to a person

lawfully on his land a general duty of care in

addition to the special duty which is owed by an

occupier to an invitee or a licensee."

8. A general duty of care must arise, if at all, from

circumstances which establish a relationship which imports the duty. If there be any difference between a general duty and a special duty, a single relationship cannot import both. The law does not speak with a forked tongue. The existence and measure of a duty of care, whether special or general, depend upon the actual relationship between the person who is said to owe the duty and the person to whom the duty is said to be owed. But when the facts of a case are found to be such that some of those facts in combination would give rise to one duty and another combination would give rise to a different duty, the defendant's liability depends on whether the plaintiff's damage has been caused by the defendant's failure to discharge any of the duties of care to which the various combinations of facts give rise. Therefore, when the liability of an occupier of property to a person entering the property is in question, the relationship of the occupier with the person entering itself suffices to give rise to a special duty of care, but if there are other circumstances which establish a relationship from which a wider general duty of care arises, the wider duty is not discharged by doing merely what would suffice to discharge the narrower duty: Perry, at p.131. The relationship of occupier and entrant is not a source of immunity from liability for breach of a wider duty if, in the circumstances, such a duty has arisen from some further relationship between them. On the other hand, when the facts of a case establish but a single relationship, so that one duty only is imported and that is a special duty, there is no room for importing a different general duty: see McDermott, at p.191. In such a case, either the special duty and the general duty are the same (what they are called does not matter) or the circumstances do not give rise to the general duty.

9. In Papantonakis, Dawson J. and I held there were facts which established a relationship between the plaintiff and the occupier of the premises on which the plaintiff entered apart from, or in addition to, the relationship of invitor and invitee and that a general duty of care arose from that further relationship. Thus approached, the case fell for determination according to whether the general duty of care had been breached. But that decision says nothing about the facts of the present case. We do not have before us a transcript of the evidence, and that presents an obstacle to determining whether there was evidence in this case tending to establish circumstances giving rise to a general duty of care. However, it was accepted in argument that the judgment of Tadgell J. contained findings on all material facts (though the findings were not necessarily accepted). On that assumption, it is possible to determine whether there was any evidentiary foundation for a general duty of care.

10. Subject to one exception, it appears that there were no circumstances which might have established any relationship between the appellant and Mrs Zaluzna other than the relationship of invitor and invitee. The injury which Mrs Zaluzna sustained was caused solely by her slipping on the moist floor; she entered on the floor of the appellant's supermarket to buy cheese and for no other reason; apart from mopping the floor, the appellant did nothing which might have created or increased the risk of her slipping; it was merely the occupier of the supermarket. No act or omission on the part of any employee (apart, possibly, from mopping the floor) caused or contributed to Mrs Zaluzna's injury. Mopping a floor on which Mrs Zaluzna would foreseeably walk is an act which creates a relationship giving rise to a general duty of care if careless mopping would enhance the risk of slipping. That act apart, there are no facts which tend to establish a relationship giving rise to a general duty of care different from the duty imposed on an invitor in conformity with Indermaur v. Dames. As his Honour found that there was no want of reasonable care in mopping, it was unnecessary to consider whether the undertaking of the mopping gave rise to a general duty of care. If his Honour's finding were set aside and the Full Court substituted a finding that carelessness in mopping caused or contributed to the risk of injury, it would be open to the Full Court (assuming the issue was raised by the pleadings or in the conduct of the litigation) to enter judgment for Mrs Zaluzna. The failure of the trial judge to consider the general duty presents no impediment to relief on the issues as they would be determined by the Full Court. If the finding stood, the judge's failure to consider the general duty is irrelevant to the result. Whether the finding stands or whether it is set aside, there is no need for a retrial. Leaving aside the possibility that a relevant general duty of care may have arisen from undertaking the mopping of the floor, there are no findings which point to evidence of any other circumstances establishing or tending to establish some further relationship. On that footing, the duty of care imposed by law on the appellant towards Mrs Zaluzna was imposed by reason only of the relationship of invitor and invitee. I turn then to the question as to the formulation of an invitor's duty of care.

11. The relationship of invitor and invitee has been understood to give rise to the duty of care defined by Willes J. in Indermaur v. Dames, and that was the duty which Tadgell J. held to apply. There was no attack in the appeal to this Court upon his Honour's application of the principles derived from Indermaur v. Dames. Such an attack was made in the notice of appeal to the Full Court, but their Honours did not find it necessary to decide that question. The attack on his Honour's judgment raised under the seventh ground of appeal necessarily depends on whether a general duty arises from the relationship of invitor and invitee which is or may be different in some way from - perhaps more onerous than - the special duty of care defined in Indermaur v. Dames.

12. The scope of a general duty and the scope of a special duty owed by an occupier of premises to a person entering on them at his invitation have been considered by this Court in a number of cases. Perhaps the clearest exposition of the subject is to be found in the judgment of Fullagar J. in Cardy which, since it furnishes an authoritative answer to the question now arising, warrants examination. First, his Honour pointed out (at p.294):

" The rules for which we refer primarily to

Indermaur v. Dames and Gautret v. Egerton ((1867)

LR 2 CP 371) are now (rightly, I think) regarded

as part of the general law relating to negligence.

According to that general law a duty to take

reasonable care for the safety of others arises

from certain situations."

Then his Honour pointed out that duties of care arise from de facto relationships which are of infinite variety. He said (at pp.294-295):

" One such relationship is that which subsists

between an occupier of land and visitors who enter

upon his land. It is, of course, under normal

circumstances, to be expected by an occupier that

visitors will enter for various reasons and for

various purposes. And in such cases the common law

has not been content to leave the situation to the

general rule without extension or qualification.

It has not been content to say that, when a visitor

enters and the relationship comes into existence,

the occupier becomes subject to a duty of care for

the safety of the visitor, and that the standard of

care required of him is that which is laid down by

Alderson B., and depends on all the circumstances

of the case. In the first place, the common law

recognized that harm might befall a visitor not by

reason of any act or omission of the occupier after

entry but by reason of some dangerous condition of

the premises, and that in some cases the occupier

ought to be held responsible for the harm suffered.

And, in the second place, it did not (as it might

have done, and as the Occupiers' Liability Act 1957

in England now, in effect, does) leave the standard

of care in relation to the condition of premises to

be decided according to the general formula of

Alderson B., but defined more specifically the

standard of care to be required of the occupier ...

In what I have just said lies, in my opinion,

the true significance, which is twofold, of the

rules laid down by Willes J. about a century ago."

(Emphasis added.)

13. In Rich v. Commissioner for Railways (N.S.W.) [1959] HCA 37; (1959) 101

CLR 135, at p 144, his Honour referred to Mummery v. Irvings Pty.Ltd. [1956] HCA 45; (1956) 96 CLR 99, at p 110, as pointing out that the duty "which the occupier of premises, as such, owes to invitees or licensees present on the premises is a separate and distinct duty, which arises from the mere fact of the occupation of the premises, and relates only to the condition of the premises". The special duty does not necessarily depend on an act done by an occupier or an omission made by him; occupancy of dangerous premises is itself sufficient to found the duty of care to persons entering by invitation or permission. Occupancy is not merely one of the circumstances establishing a neighbour relationship founding a general duty of care to persons who enter or who might foreseeably enter on the premises. At the time when Indermaur v. Dames was decided, the occupancy of dangerous premises had been held to be insufficient by itself to impose on the occupier a duty of care to every entrant: see Gautret v. Egerton (1867) LR 2 CP 371. It may be that occupation of dangerous premises would be regarded by a modern court as a more significant factor in establishing a neighbour relationship sufficient to attract a general duty of care to persons who might foreseeably enter the premises, but the law has not left the existence of a duty of care to an invitee to be assessed in all the circumstances according to contemporary ways of thought. The special duties are imposed by law on an occupier of land in virtue of his occupation although, as Fullagar J. said in Cardy, the law holds that the occupier ought to be held liable only "in some cases". The rule which imposes the special duty supplies, so far as it extends, the principles governing the invitor-invitee relationship. Nevertheless, the rule is consistent with, and does not lie outside, the general law of negligence. Although it prescribes a standard of care, the prescribed standard does not fall outside the general standard laid down by Alderson B. The prescribing of the standard, however, makes it unnecessary to speculate whether a jury, directed in accordance with the speech of Lord Atkin and the judgment of Alderson B., would apply to an invitor the same criterion of liability as it would apply when it is directed in terms of the rule prescribing the invitor's special duty.

14. The rules relating to invitees and licensees, as Windeyer J. said in Cardy (at p.317) "do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances" (emphasis added). In that case Fullagar J. said (at p.295) that the rules "are concerned only with laying down the standard of care appropriate to two special classes of case" and "are concerned only with cases where a visitor has suffered harm through some dangerous condition of the premises". His Honour saw no inconsistency between the standard of care prescribed by the respective rules defining the special duties of care and the standard of care contained in the formula stated by Alderson B. But his Honour should not be taken to mean that the varying standards of care applicable in respect of the duty owed to different classes of entrant were to be assessed in accordance with, and subject to no more precise guidance than, the formula stated by Alderson B. The particular standards of care formulated in the rules defining the special duties are the legal standards "appropriate to two special classes of case".

15. The rules prescribing the special duties of care owed by an occupier of premises to the various classes of persons entering on those premises conclusively answer, so far as they go, the questions arising under the general law as to whether the relationship between the occupier and the person entering gives rise to a duty of care and as to what a prudent and reasonable occupier of the premises on whom a duty of care is imposed should do or refrain from doing to discharge it. The issues of fact arising under the rules prescribing the special duties of care are more confined than the issues which arise when there is a relationship which gives rise to a general duty of care.

16. By bringing the rules defining the special duties of an occupier into the framework of the general law of negligence, a step was taken which led towards the subsuming of the particular rules within the general rules derived from the seminal speech of Lord Atkin and the judgment of Alderson B. earlier mentioned. Thus, in Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, Windeyer J. said (at p 89):

" ... even without the aid of a statute such as now

exists in England, the trend of judicial authority

has been to treat the liability of an occupier for

mishaps upon his premises as governed by a duty of

care arising from the general principles of the law

of negligence. The special rules concerning

invitees, licensees and others are ultimately

subservient to those general principles. Instead

of first looking at the capacity in which the

plaintiff comes upon the premises, and putting him

into a category by which his rights are measured,

the tendency now is to look at all the

circumstances of the case, including the activities

of the occupier upon, or in respect of, the

premises, and to measure his liability against the

conduct that would be expected of a reasonably

careful man in such circumstances."

His Honour thought that the judgments in Cardy provided "recent illustrations of this tendency". But, with great respect to his Honour, the judgments in this Court up to that time had maintained the rules defining the special duties of an occupier as the rules applicable to the particular relationships of occupier of premises and the various classes of persons entering on them. What this Court had done was to assert that that relationship did not necessarily exclude the existence of another relationship giving rise to a general duty. In cases where the only relevant relationship was that of occupier and invitee, the authority of Indermaur v. Dames remained undiminished. In Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42, Fullagar J. delivered a judgment which, though in dissent on the facts, commanded the concurrence of Kitto J. (in the majority) as an exposition of the law. His Honour said (at p.55):

" In cases of this type juries in this country

are, I think, invariably directed in accordance

with the exposition of Willes J. in Indermaur v.

Dames, and it is on a correct understanding of that

exposition that the present case, in my opinion,

depends."

He went on to say (at p.56) of the statement of Willes J.:

" The statement does not lay down a special rule

outside and apart from the general law of

negligence. Nor does it, within the general law of

negligence, prescribe a special standard of care.

The duty is a duty to take reasonable care. The

standard is the standard of the reasonable man.

The gravamen of the whole passage lies in its

statement of what may fairly be regarded as

reasonable care in cases where a visitor enters on

premises as an invitee of the occupier. It ought

not to be read as requiring of the occupier

something more than reasonable care."

However, far from subsuming the formulation of the special duty as laid down in Indermaur v. Dames in the formulation of a general duty, his Honour's judgment turned on the elements of the special duty as Willes J. had laid them down. He held that there was no evidence that the Commissioner or any of his servants knew or ought to have known that the wooden bar on which the plaintiff had struck his head possessed the character of an unusual danger: see p.57. That was the very ground of his dissent. In his Honour's judgment, I do not detect any want of recognition of the applicability of the formulation of the special duty by Willes J. in Indermaur v. Dames.

17. In Hackshaw v. Shaw, Deane J. understood Fullagar J. and Kitto J. as having moved towards "the full unifying effect that Donoghue v. Stevenson, properly understood, had had upon (the law of negligence)" (at p 652). And in Papantonakis, Mason J. (at p 20) regarded Anderson and Voli "as settling that the duty of an occupier, even as it is expressed in the Indermaur v. Dames formulation, is no more and no less than the ordinary duty of reasonable care". If these passages are taken to suggest that the formulation of the general duty of care has subsumed the formulation of the special duty, I would be respectfully unable to agree. As I read the cases, the law is correctly stated by Gibbs C.J. in Hackshaw v. Shaw, at p 622:

" Notwithstanding the trend to which Windeyer J.

referred in Voli v. Inglewood Shire Council, this

Court has not discarded the special rules of the

common law which have 'adopted a fixed

classification of the capacities or characters in

which persons enter upon premises occupied by

others, and (have established) a special standard

of duty ... in reference to each class': Lipman v.

Clendinnen ((1932) 46 C.L.R.550, at p.555).

However, the Court has held that there may coexist

with, or be superimposed on, the special duty which

is owed by an occupier to persons in those various

categories 'a general duty of care, which is not

related to the condition of the premises, and which

arises not from the fact of occupation but from the

general circumstances of the case': Rich v.

Commissioner for Railways (N.S.W.) (at p.144)."

In Papantonakis, though Dawson J. and I did not depart from the theory of coexisting duties, we did not exclude the ultimate subsumption of the special duty formulation by the formulation of the general duty. The future course of legal development may see a narrowing of the differences between the formulations, but the rules relating to the special duties cannot now be regarded as obsolete or superseded.

18. The retention of the special duties serves two purposes, one positive the other negative. First, it establishes as a matter of law that the occupation of premises is a sufficient foundation per se for imposing on the occupier a duty of care at least to persons lawfully entering on the premises. Secondly, it provides some limitations on those duties of an occupier which arise when there is no relevant relationship other than that of occupier and person entering. It may be open to debate whether the development of the law is best served by retaining legal rules which prescribe the balance between the interests of the occupier and the interests of the person entering rather than by ascertaining where the balance lies in each case according to broad notions of foreseeability and reasonableness, but the history of this branch of the law and modern attempts to restate it (see Lord Wilberforce's restatement in respect of trespassers in Herrington, at pp.919-921) testify to the utility of prescribing the extent of the duty which occupation of premises imposes on the occupier towards the various classes of persons who come or might come upon his premises. Moreover, I would respectfully agree with the view expressed by Wilson J. in Papantonakis where, in reference to the formulations of the duty of an occupier towards the different classes of persons who may enter his property, his Honour said (at p.23):

" The community's natural desire for certainty in the

law is best served by their retention, so long as

their relationship to the fundamental principles of

the law of negligence is recognized and

maintained."

19. It follows that the relationship of invitor and invitee

does not give rise to a duty made more onerous by referring its legal origin to what Lord Atkin said in Donoghue v. Stevenson rather than to what Willes J. said in Indermaur v. Dames. Tadgell J. was right to consider whether there had been a breach of the special duty of care formulated in Indermaur v. Dames (though I would reserve consideration of the question whether the special duty was correctly stated in London Graving Dock Co.Ld. v. Horton (1951) AC 737, to which his Honour referred, until the correctness of that decision comes in question). Subject to what I have said about undertaking the mopping of the floor, there were no facts in the case to attract consideration of a general duty of care and no wider or more onerous duty imposed on the appellant than that defined by Willes J. in Indermaur v. Dames. As there were no unresolved issues of fact between the parties, an order for a new trial was not warranted.

20. If the order for a new trial is set aside and the seventh ground of appeal to the Full Court is held to fail, Mrs Zaluzna's appeal to the Full Court on grounds 1 to 6 remains unresolved. Therefore I would remit the matter to the Full Court to hear and determine the appeal. It should be heard and determined on the footing that Tadgell J. was right to consider the duty of care prescribed by Indermaur v. Dames. If his Honour's findings of fact stand, that is the only relevant duty arising for consideration. If his Honour's findings as to the mopping of the floor are set aside, a question may arise as to whether Mrs Zaluzna suffered her injuries by reason of the appellant's breach of a general duty of care, but that is a question which the Full Court can determine.

21. The appeal to this Court should be allowed, the order for a retrial set aside and the appeal to the Full Court remitted to the Full Court to hear and determine the issues which have not yet been resolved.

ORDER

Appeal dismissed with costs.